Cite as U.S. v. Wilson, 159 F.3d 280 (7th Cir. 1998)
In the United States Court of Appeals For the Seventh Circuit
No. 98-1256
United States of America, Plaintiff-Appellee,
v.
Carlton E. Wilson, Defendant-Appellant.
Appeal from the United States District Court for the Southern
District of Illinois. No. 97 CR 40015--William L. Beatty, Judge.
ARGUED MAY 26, 1998--DECIDED OCTOBER 16, 1998
Before Posner, Chief Judge, and Bauer and Coffey, Circuit
Judges.
Bauer, Circuit Judge. On September 5, 1997, appellant Carlton
Wilson was convicted by a jury of possessing a gun while subject to
a protective order, prohibited by a relatively new and obscure
portion of 18 U.S.C. sec. 922. On appeal, Wilson raises a host of
issues regarding his conviction, claiming that the statute is
unconstitutional, that the district court erred by denying his
motions for a judgment of acquittal, that the district court
improperly refused to admit one of his exhibits, and that the
district court erroneously failed to tender two of his proposed
instructions to the jury. Wilson also attacks his sentence. As we
discuss below, we find that 18 U.S.C. sec. 922(g)(8) is
constitutional and that the district court did not commit any
errors with regard to Wilson's conviction or sentence, and we
therefore affirm.
BACKGROUND
The following facts are drawn from the record in the
underlying jury trial and are viewed in a light most favorable to
the government. United States v. Wingate, 128 F.3d 1157, 1158 (7th
Cir. 1997). On September 10, 1996, Illinois State Trooper Mari Kay
Rolape ("Rolape") stopped to assist appellant Carlton Wilson
("Wilson"), whose pickup truck was pulled over on the side of
eastbound Illinois Route 146. In the course of running a routine
check on Wilson's driver's license, Trooper Rolape learned of an
outstanding arrest warrant against Wilson for failure to appear in
court. As Trooper Rolape talked to Wilson about the warrant, fellow
State Trooper Bill Jacques ("Jacques") arrived on the scene and
eventually placed Wilson under arrest. During a subsequent
inventory search of Wilson's truck, Trooper Jacques found a 12
gauge shotgun contained in a case and a MAC 90 Sporter rifle on the
floorboard behind the driver's seat. In addition, Trooper Jacques
found a loaded nine-millimeter Locrin handgun in a fanny pack that
Wilson had been wearing immediately prior to his arrest. On March
5, 1997, Wilson was indicted in the United States District Court
for the Southern District of Illinois for possessing a firearm in
and affecting interstate commerce while subject to an order of
protection, pursuant to 18 U.S.C. sec. 922(g)(8).
At the time of his arrest, Wilson was subject to an order of
protection stemming from divorce proceedings initiated by Wilson's
(now ex-) wife, Angela Wilson. Carlton and Angela had been married
on June 1, 1991, and Angela filed for divorce in Crawford County,
Illinois, in 1994. On August 15, 1995, Angela and her attorney,
William Thomas ("Thomas"), obtained an emergency order of
protection against Wilson, with which he was subsequently served.
The order stated that a further hearing would be held on September
1, 1995, and Wilson (as well as Angela and Thomas) appeared in
court that day. At that time, while acting pro se, Wilson first
filed a motion with Circuit Court Judge Hill to vacate a default
dissolution of marriage that had been entered in favor of Angela
and a motion to have Judge Hill recuse himself from the case. The
Judge granted both of Wilson's motions, and Judge David Correll
took over the case. Wilson, Thomas, and Judge Correll then retired
to Judge Correll's chambers for the scheduled hearing on the entry
of a plenary order of protection ("plenary order") against Wilson
while Angela and Wilson's mother, who was also present, waited
outside. [footnote 1] The testimony at trial revealed that the
meeting in Judge Correll's chambers lasted no more than ten
minutes. During the meeting, Judge Correll explained the proposed
order of protection to Wilson, who indicated that he did not have
a problem with any of its terms. The parties also discussed child
support payments and a visitation schedule for Wilson. On September
15, as was custom, Thomas presented a written version of the order
of protection to Judge Correll for his signature, and the order was
signed and entered in the court's docket. This order was never
rescinded, and was in effect on the date that Wilson was arrested
by Trooper Jacques.
Wilson went to trial before a jury on September 2, 1997, and
was convicted on September 5, 1997. On January 29, 1998, Wilson was
sentenced to 41 months in prison, given a $7,500 fine and a $100
special assessment, and placed on supervised release for three
years following his imprisonment. Wilson filed a timely notice of
appeal, and presently challenges the constitutionality of sec.
922(g)(8), several rulings of the district court prior to and
during trial, and his sentence. We discuss each of his contentions
in turn.
ANALYSIS
I. Constitutionality of Statute
As stated above, Wilson was convicted for possessing a gun in
interstate commerce while subject to a protection order, in
violation of 18 U.S.C. sec. 922(g)(8). This statute states:
It shall be unlawful for any person--
. . .
(8) who is subject to a court order that--
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury . . .
. . .
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
Wilson first challenges his conviction by arguing that sec.
922(g)(8) is unconstitutional for a variety of reasons. The
district court rejected these arguments, finding that the statute
passed constitutional muster. We review the district court's
determination of the constitutionality of a federal statute de
novo. United States v. Black, 125 F.3d 454, 458 (7th Cir. 1997),
cert. denied, ___ U.S. ___, 118 S. Ct. 1821 (1998).
1. Commerce Clause
First, Wilson alleges that sec. 922(g)(8) violates the
Commerce Clause. The standard of Commerce Clause review is narrow
and deferential, since the Commerce Clause is a grant of plenary
authority to Congress. This power, complete in itself, may be
exercised to its utmost extent and is susceptible to no limits
except for those prescribed in the Constitution. United States v.
Kenney, 91 F.3d 884, 887 (7th Cir. 1996) (citing Hodel v. Virginia
Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981)
(other citations omitted)). Accordingly, our task is merely to
determine whether Congress could have had a rational basis for
utilizing its Commerce Clause powers and to ensure that the
regulatory means chosen were "reasonably adapted to the end
permitted by the Constitution." Id. (quoting Hodel, 452 U.S. at
276). It is also up to the courts to ultimately decide whether
Congress exceeded its constitutionally enumerated powers in
enacting the statute at issue. Id. (citing United States v. Wilson,
73 F.3d 675, 680 (7th Cir. 1995), cert. denied, ___ U.S. ___, 117
S. Ct. 46 (1996)).
The Commerce Clause gives Congress the power to "regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes." U.S. Const. art. I, sec. 8, cl. 3. The
Supreme Court has identified three areas of activity which may be
regulated by Congress under the commerce power. First, it may
regulate the use of the channels of interstate commerce. Second,
Congress can regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
even though threats may only come from intrastate activities.
Finally, Congress can regulate activities which have a substantial
relation to interstate commerce; that is, those activities which
"substantially affect" interstate commerce. United States v. Lopez,
514 U.S. 549, 558-59 (1995) (citations omitted).
In Lopez, a case on which Wilson heavily relies, the Supreme
Court invalidated 18 U.S.C. sec. 922(q), which was added to the
Code by the Gun-Free School Zones Act of 1990. The statute made it
a federal offense for any individual to "knowingly . . . possess a
firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone." The Court determined that a
proper analysis of Congress' power to enact the statute had to be
undertaken under the third category above, since sec. 922(q) did
not regulate the use of the channels of interstate commerce or seek
to protect an instrumentality of interstate commerce or a thing in
interstate commerce. 514 U.S. at 559. Emphasizing that legislation
regulating economic activity which substantially affects interstate
commerce will be sustained, the Court found that sec. 922(q)
exceeded Congress' power. Id. at 560.
First, the Court noted that while it has upheld Congressional
acts regulating intrastate activities which substantially affect
interstate commerce, it found that sec. 922(q) was a criminal
statute which, by its terms, had nothing to do with commerce or any
type of economic enterprise. It also was not an essential part of
a larger regulation which would be undercut unless the intrastate
activity were regulated, and the Court found that the statute could
not be sustained under precedent upholding the regulation of
activities that arise from or are connected with a commercial
transaction which, when viewed in the aggregate, substantially
affects interstate commerce. Id. at 559-61. Second, the Court found
that sec. 922(q) contained no jurisdictional element that ensured,
through case-by-case inquiry, that the firearm possession in
question affects interstate commerce. Id. at 561. Finally, the
Court stated that while it could also examine legislative findings
to determine the constitutionality of a statute, Congress had made
no express findings regarding the effects upon interstate commerce
of possessing a gun in a school zone. Id. at 562. For all these
reasons, the Court found that the statute could not be justified by
the Commerce Clause and held it invalid. Wilson asserts that the
constitutionality of sec. 922(g) must be analyzed under the
"substantial affect on interstate commerce" prong of Lopez. While
the government disagrees, we believe that the third prong is the
appropriate analysis to be applied here. However, unlike the
Supreme Court in Lopez, we find that the statute challenged here
passes constitutional muster.
Unlike former sec. 922(q), [footnote 2] sec. 922(g)(8)
contains a jurisdictional element. The statute clearly prohibits
certain individuals from "ship[ping] or tranport[ing] in interstate
or foreign commerce, or possess[ing] in or affecting commerce, any
firearm or ammunition" or "receiv[ing] any firearm or ammunition
which has been shipped or transported in interstate or foreign
commerce." In United States v. Pierson, 139 F.3d 501 (5th Cir.
1998), petition for cert. filed (No. 98-5272 July 16, 1998), the
Fifth Circuit, in the only other appellate opinion addressing sec.
922(g)(8), held that "[b]y expressly requiring a nexus between the
illegal firearm and interstate commerce, Congress has exercised its
delegated power under the Commerce Clause to reach 'a discrete set
of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.'" Pierson, 139
F.3d at 503 (quoting Lopez, 514 U.S. at 562). We agree with this
reasoning, and we similarly find that the jurisdictional element
contained in sec. 922(g) establishes the requisite nexus with
interstate commerce. Furthermore, as the Fifth Circuit noted,
courts have upheld the constitutionality of sec. 922(g)(1), the
"felon in possession" statute, which shares the same jurisdictional
element with sec. 922(g)(8). See, e.g., United States v. Bell, 70
F.3d 495, 498 (7th Cir. 1995); United States v. Rawls, 85 F.3d 240,
242 (5th Cir. 1996). As we noted in Bell, the jurisdictional
element required "the government . . . to prove exactly what Lopez
found missing under sec. 922(q)." 70 F.3d at 498. Therefore, the
present statute, unlike the one at issue in Lopez, contains a
jurisdictional element that brings it within Congress' power under
the Commerce Clause.
Wilson asserts that even though the jurisdictional element is
present, Lopez requires that a statute must specify a "substantial
affect" on interstate commerce in order to be constitutional. This
argument has been considered and rejected in the context of sec.
922(g)(1). In Scarborough v. United States, 431 U.S. 563, 577
(1977), the Supreme Court held that under 18 U.S.C. App. sec. 1202,
the predecessor of sec. 922(g)(1), the Commerce Clause was
satisfied as long as a "minimal nexus" to interstate commerce was
shown. Accordingly, the government need only prove that the firearm
in question moved in interstate commerce at any time to meet its
burden of proving that it was used "in or affecting commerce."
Bell, 70 F.3d at 498 (citing United States v. Lowe, 860 F.2d 1370,
1374 (7th Cir. 1988), cert. denied, 490 U.S. 1005 (1989)); see also
United States v. Chesney, 86 F.3d 564, 571 (6th Cir.), cert.
denied, ___ U.S. ___, 117 S. Ct. 2470 (1996). The discussion in
Lopez of the "substantially affects" standard did not "revis[e] the
government's burden of proof on a jurisdictional element in
criminal proceedings" and did not alter the fact that it need only
meet the "minimal nexus" test enunciated in Scarborough. United
States v. Cardoza, 129 F.3d 6, 11 (1st Cir. 1997). Accordingly,
under sec. 922(g)(1), the government need only prove "a prior
movement of the firearm across state lines" to satisfy the
jurisdictional element and the Commerce Clause. United States v.
Lewis, 100 F.3d 49, 51-52 (7th Cir. 1996). Since sec. 922(g)(1) and
sec. 922(g)(8) share the same jurisdictional element, this analysis
is equally applicable to the present case, and Wilson's argument
accordingly fails.
While Wilson levels a number of other challenges under the
Commerce Clause, most amount to policy arguments and are
inappropriate for us to consider. None of his other arguments merit
discussion. Since sec. 922(g)(8) requires the government to prove
that the firearms at issue have at least a minimal nexus with
interstate commerce, the statute was enacted within Congress' power
under the Commerce Clause, and we find that it is constitutional.
2. Tenth Amendment
Wilson next argues that sec. 922(g)(8) violates the Tenth
Amendment, which provides that "[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people."
U.S. Const. amend. X. In New York v. United States, the Supreme
Court stated that "[i]f a power is delegated to Congress in the
Constitution, the Tenth Amendment expressly disclaims any
reservation of that power to the States; if a power is an attribute
of state sovereignty reserved by the Tenth Amendment, it is
necessarily a power the Constitution has not conferred on
Congress." 505 U.S. 144, 156 (1992). Thus, the Tenth Amendment and
Article I of the Constitution are complements to one another; when
Congress acts pursuant to an enumerated power, there can be no
violation of the Tenth Amendment. Black, 125 F.3d at 462 (citations
omitted); accord United States v. Mussari, 95 F.3d 787, 791 (9th
Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1567 (1997), and
United States v. Hampshire, 95 F.3d 999, 1004 (10th Cir. 1996),
cert. denied, ___ U.S. ___, 117 S. Ct. 753 (1997).
Wilson disagrees with our past reliance on New York, stating
that the "blanket reading" we have given it is "simply wrong."
Wilson notes that in New York, the Supreme Court invalidated a
portion of the Low-Level Radioactive Waste Policy Amendments Act of
1985 because it was inconsistent with the Tenth Amendment. 505 U.S.
at 174-77. However, the Court in New York had to decide "the
circumstances under which Congress may use the States as implements
of regulation; that is, whether Congress may direct or otherwise
motivate the States to regulate in a particular field or a
particular way." Id. at 161. The Court found that a provision under
which states either had to regulate the disposal of nuclear waste
according to the mandates of Congress or take title to such waste
unconstitutional, because such actions would "'commandeer' state
governments into the service of federal regulatory purposes" and
would thus be inconsistent with the Constitution's division of
authority between federal and state governments. Id. at 175. The
present case, involving a federal criminal statute to be
implemented by federal authorities, implicates no such concerns,
and Wilson's argument is without merit. [footnote 3] Therefore,
since we have found that Congress acted within its Commerce Clause
power when it enacted sec. 922(g)(8), there is no Tenth Amendment
violation in this case.
Wilson also asserts that sec. 922(g)(8) interferes with the
ability of state judges to carry out their state's domestic
relations laws, thus impermissibly regulating an area reserved for
the states. In support of his argument, Wilson offers up a parade
of hypothetical horribles that could ensue if the statute is
allowed to stand. His arguments amount to policy concerns, which
are for Congress to consider, not the courts. None of the examples
offered by Wilson amounts to an unconstitutional infringement on
the States' rights to regulate domestic relations, and Wilson has
failed to demonstrate that sec. 922(g)(8) violates the Tenth
Amendment.
3. Due Process
Lastly, Wilson argues that the statute is unconstitutional
because it violates his due process rights under the Fifth
Amendment. Citing Bouie v. City of Columbia, 378 U.S. 347, 350-51
(1964), for the proposition that a criminal statute, to be valid,
must give fair warning of the conduct that it makes a crime, Wilson
argues that he did not receive any warning that his possession of
a weapon would lead to a federal prosecution. Wilson appears to
have mistakenly combined two different lines of argument into one:
whether a person knows that a law has been passed regulating
certain conduct is a question separate and distinct from the
question of whether that law, as written, adequately describes the
conduct it seeks to criminalize. In any event, neither of Wilson's
points is meritorious.
To the extent that Wilson is arguing that language used in
sec. 922(g)(8) does not give adequate notice of the conduct it
makes illegal, he is incorrect.
The constitutional requirement of definiteness is violated by
a criminal statute that fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is
forbidden by the statute. The underlying principle is that no
man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.
Bouie, 378 U.S. at 351 (quoting United States v. Harriss, 347 U.S.
612, 617 (1954)). A statute must be struck down when it is not
"sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties."
Id. (quoting Connally v. General Const. Co., 269 U.S. 385, 391
(1926)). An examination of the language of sec. 922(g)(8) shows
that it does not suffer from any such deficiencies. It clearly
specifies that individuals subject to certain types of protective
orders may not ship or transport firearms or ammunition in or
affecting commerce. The class of affected individuals is explicitly
defined, as is the conduct sought to be regulated, and the statute
is not unconstitutionally vague.
To the extent that Wilson is arguing that he was unaware of
the law and that his conviction therefore cannot stand, he is also
incorrect. The traditional rule in American jurisprudence is that
ignorance of the law is no defense to a criminal prosecution. Cheek
v. United States, 498 U.S. 192, 199 (1991) (citations omitted); see
also Bryan v. United States, ___ U.S. ___, 118 S. Ct. 1939, 1947
(1998) (traditional rule is that "ignorance of the law is no
excuse"); Lambert v. People of the State of California, 355 U.S.
225, 228 (1957) (rule that "ignorance of the law will not excuse"
is deeply rooted in American law). Wilson has not shown that the
present statute falls into an exception to this general rule, see
Bryan, 118 S. Ct. at 1947 (noting exception for "highly technical
statutes that present[ ] the danger of ensnaring individuals
engaged in apparently innocent conduct"), and Lambert, 355 U.S. at
228 (notice required when penalty may be exacted for failing to
act), and the fact that he was unaware of the existence of sec.
922(g)(8) does not render his conviction erroneous.
Lastly, Wilson alleges that because he had no notice of sec.
922(g)(8), he was unable to form the requisite mens rea to violate
the statute. He then cites Staples v. United States, 511 U.S. 600
(1994), arguing that the elimination of a mens rea requirement in
a criminal statute is a fundamental departure from longstanding
principles of criminal law. See Appellant's Brief at 23. Being
unable to form the mens rea required by a statute and being charged
under a statute that has no mens rea requirement, however, are not
one and the same. To the extent that Wilson is suggesting that sec.
922(g)(8) requires no particular mens rea for its violation, he is
incorrect. Pursuant to 18 U.S.C. sec. 924(a)(2), an individual may
only be punished if he "knowingly" violates any provision of sec.
922(g). This is in contrast to the statute involved in Staples,
which contained no specific mens rea requirement but simply
provided that it was "unlawful" to receive or possess certain types
of firearms unless they were registered with the government.
Staples, 511 U.S. at 605. Since sec. 924(g)(8) does require a
specific state of mind, Wilson's reliance on Staples is misplaced.
Furthermore, the fact that he did not know about the statute
does not mean that he could not have committed a "knowing"
violation of it. The Supreme Court has stated that "the term
'knowingly' does not necessarily have any reference to a culpable
state of mind or to knowledge of the law." Bryan, 118 S. Ct. at
1945. Rather, "the knowledge requisite to knowing violation of a
statute is factual knowledge as distinguished from knowledge of the
law." Id. (quoting Boyce Motor Lines, Inc. v. United States, 342
U.S. 337, 345 (1952) (Jackson, J., dissenting)). Unless the text of
the statute at issue dictates a different result, establishing a
"knowing" violation of the statute only requires proof of knowledge
by the defendant of the facts that constitute the offense. Id. at
1945. This understanding has been applied to those portions of sec.
922 that punish "knowing" conduct, including sec. 922(g). Ryan, 118
S. Ct. at 1945- 46; United States v. Ladell, 127 F.3d 622, 624-25
(7th Cir. 1997) (citations omitted). Wilson has not argued, nor do
we find that he could, that the text of sec. 922(g)(8) requires a
different meaning to be ascribed to "knowing," and he has not
argued that he did not have knowledge of the actions constituting
the offense (i.e., that he was possessing a gun in his car and was
subject to an order of protection). Wilson's lack of knowledge of
the existence of the statute is therefore immaterial and his due
process rights were not violated in this case.
In summary, we find that sec. 922(g)(8) is a valid exercise of
Congress' power under the Commerce Clause and does not violate
either the Tenth Amendment or the due process clause of the Fifth
Amendment. However, Wilson also challenges several other rulings of
the district court, to which we now turn.
II. Denial of Defendant's Motions for Judgment of Acquittal
After the government had presented its evidence, and again
after Wilson had presented his, defense counsel moved for a
judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The
district court denied both of these motions. On appeal, Wilson
asserts that the district court's decisions were erroneous because
the hearing he was given on September 1, 1995, did not meet the
requirements of the Due Process Clause. The Supreme Court has
consistently held that "some form of hearing is required before an
individual is finally deprived of a property interest." Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). To meet due process
requirements, this hearing must afford an opportunity to be heard
"at a meaningful time and in a meaningful manner." Id. (citing
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). "This requirement
generally means that a party must have the opportunity for a
hearing before the government initially interferes with the party's
protected property interest." Schmit v. ITT Federal Elec. Int'l,
986 F.2d 1103, 1107 (7th Cir. 1993) (quoting Abbott v. Louisiana
Ins. Guaranty Ass'n, 889 F.2d 626, 631 (5th Cir. 1989), cert.
denied, 494 U.S. 1082 (1990)). The district court correctly denied
Wilson's motions because, as the evidence presented at trial
illustrates, the hearing afforded Wilson comports with due process
requirements.
First, it is unquestioned that Wilson had notice of the
hearing that took place on September 1, 1995. The government
presented evidence that a copy of the emergency order of protection
was personally served on Wilson by a deputy Crawford County
sheriff. See Trial Tr. Day 2 at 110. This order contained notice
that another hearing would be held on September 1, 1995, at 1:00
p.m., see Trial Tr. Day 1 at 66, and Wilson was present in court on
that day and time. Second, the hearing was held at a meaningful
time. As noted above, a hearing at a "meaningful time" generally
means one held before someone is separated from their property (or,
in this case, liberty). While Wilson attempted to raise doubt about
whether the hearing on September 1 concerned the plenary order of
protection, the government put on evidence indicating that it was
and that it took place before the order was entered.
Finally, we also agree with the district court that Wilson had
an opportunity to participate in a "meaningful manner" at the
hearing. An opportunity to respond is afforded when a party has
"the opportunity to present reasons, either in person or in
writing, why proposed action should not be taken . . . ." Cleveland
Board of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Wilson was
afforded this opportunity at the hearing. According to both Thomas
and Judge Correll, the protective order was explained to Wilson and
he was asked if he could live by those terms. While Wilson
indicated that he could and the order was entered, he could also
have told the judge that he disagreed with the order and given his
reasons therefor. The record indicates that Wilson, although
proceeding pro se at the time, had successfully persuaded another
judge to vacate a default divorce that had been entered and then
recuse himself from the case. Wilson was thus competent to lodge an
objection to the protective order, and he was given the ability to
do so. This is all that due process requires, and the district
court correctly found that Wilson was not entitled to a judgment of
acquittal.
III. Evidentiary Ruling
Wilson next argues that the district court erred in failing to
admit Defendant's Exhibit 6 at trial. We examine the decision of
the district court to admit or exclude evidence for an abuse of
discretion. Kelly v. Municipal Courts of Marion County, Indiana, 97
F.3d 902, 912-13 (7th Cir. 1996). Accordingly, our inquiry is not
whether we would have ruled the same way but rather whether any
reasonable person would agree with the trial court. Holmes v.
Elgin, Joliet & Eastern Railway Co., 18 F.3d 1393, 1397 (7th Cir.
1994). Even if we find that an error was made, reversal is only
appropriate if the error caused some harm to the case. Id.
The exhibit in question is a bill from Thomas for legal work
performed on behalf of Wilson's ex-wife during their divorce
proceedings. When the exhibit was offered at trial, the prosecution
objected to its admission on the basis of relevance. See Trial Tr.,
Day 2 at 67. The court sustained the objection, finding that the
exhibit would "confuse the jury" and would not "add[ ] anything" to
the evidence already presented. Id. at 73. Under Fed. R. Evid. 403,
the court may exclude relevant evidence whose probative value is
substantially outweighed by the danger of its confusing the issues.
The district court's balancing of probative value versus prejudice
is a "highly discretionary function which is afforded great
deference by this Court." United States v. Adames, 56 F.3d 737, 746
(7th Cir. 1995), cert. denied, 517 U.S. 1250 (1996). Given our
deferential standard of review, we cannot say that the district
court committed any error by refusing to admit Defendant's Exhibit
6.
The exhibit reflects that Thomas billed Angela Wilson for the
following: "9/01/95 Hearing on motion to vacate; Hearing on
extension of order of protection . . . 9/15/95 Meeting; Reset case;
Get order of protection entered; Notice of Hearing." See
Appellant's Brief App. C. Defense counsel argued to the district
court, in essence, that the bill should be admitted because it
showed that the hearing on September 1 was for the purpose of
extending the emergency order of protection already entered against
Wilson and did not concern the plenary order of protection entered
on September 15. In response, the government pointed out that
Thomas had testified that the bill was sent by his office, not by
himself personally, and that nothing showed that the invoice
represented an exhaustive account of every action Thomas took on
Angela Wilson's behalf. Additionally, Thomas testified that he
"probably didn't look at it before it was sent," and acknowledged
only that it represented work that he had performed for Angela
Wilson. See Trial Tr., Day 2 at 67. This testimony supports the
district court's conclusion that the exhibit was of little
probative value and would confuse the jury, and we cannot find that
this conclusion constitutes an abuse of discretion.
IV. Jury Instructions
Wilson also takes issue with the district court's refusal to
give two of his tendered instructions to the jury. The first
instruction read as follows:
One of the elements the Government has to prove beyond a
reasonable doubt is that Defendant had a hearing before the
plenary order of protection was entered. The law requires that
a hearing includes [sic] a defendant's right to be heard at a
meaningful time and in a meaningful manner.
See Appellant's Brief, App. F. Similarly, Wilson's second proposed
instruction stated:
One of the elements the Government has to prove beyond a
reasonable doubt is that Defendant had an opportunity to
participate at a hearing before the plenary order of
protection was entered. The law requires that an opportunity
to participate at a hearing includes the defendant's right to
a fair and meaningful opportunity to present his defense.
See id., App. G. The court refused to give these instructions,
finding that they were confusing and would not help the jury
resolve any of the issues before it. We review a district court's
decisions regarding jury instructions for an abuse of discretion.
American Nat'l Bank & Trust Co. of Chicago v. Regional Transp.
Auth., 125 F.3d 420, 434 (7th Cir. 1997) (citation omitted). We
find no abuse of discretion here.
A defendant is entitled to a jury instruction on his theory of
defense only if: 1) the instruction represents an accurate
statement of the law; 2) the instruction reflects a theory that is
supported by the evidence; 3) the instruction reflects a theory
that is not already part of the charge; and 4) failure to include
the instruction would deny the defendant a fair trial. United
States v. Edwards, 36 F.3d 639, 645 (7th Cir. 1994) (citing United
States v. Boykins, 9 F.3d 1278, 1285 (7th Cir. 1993)). For a
conviction under sec. 922(g)(8), one of the elements that the
government must prove beyond a reasonable doubt is that the
protective order was issued against the defendant "after a hearing
of which such person received actual notice, and at which such
person had an opportunity to participate." sec. 922(g)(8)(A). These
very elements were part of the charge to the jury in an instruction
detailing what the government had to prove in order for it to find
Wilson guilty. Wilson's proposed instructions essentially repeated
these elements; as such, they did not meet criteria (3) above and
the district court correctly refused to give them.
Wilson also argues that his instructions should have been
given because the terms "hearing" and "opportunity to participate"
were not otherwise defined in the instructions. We, just as the
district court, disagree that these terms needed any definitions
beyond their common-sense meanings. The instructions given to the
jury tracked the language of sec. 922(g)(8), including as elements
of the crime: "4. The Order of Protection was issued after a
hearing of which defendant received actual notice; 5. Defendant had
an opportunity to participate at said hearing . . . ." See Loose
Pleadings, Vol. I. It is axiomatic that when construing a statute,
we must first look to the language used by Congress, giving the
words their ordinary meaning. "[A]bsent a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive." American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982).
A court in the District of Connecticut has taken this approach
to sec. 922(g)(8), applying these definitions:
Webster's New International Dictionary defines "opportunity"
as "a time or place favorable for executing a purpose" and
then further explicates that the word "opportunity," ". . .
often implies little more than a possibility or chance of
giving rise to some result." The same dictionary defines
"participate" as "[t]o have a share in common with others; to
partake . . . ." From these dictionary definitions the plain
meaning of the phrase "opportunity to participate" can be
construed as a possibility or chance to partake or share.
United States v. Falzone, 1998 WL 351471 (D. Conn. 1998).
Additionally, Webster's Collegiate Dictionary defines "hearing" as
"an opportunity to be heard, to present one's side of a case, or to
be generally known or appreciated." Webster's Collegiate Dictionary
535 (10th ed. 1996). The terms "hearing" and "opportunity to
participate" are not arcane legal terms that the general public
does not understand, and we do not believe that any special
attention had to be given to them in the jury instructions. The
definitions found in the dictionary adequately describe these terms
for purposes of the jury's deliberations, and we believe that the
jury would have understood the terms to have these common meanings.
Accordingly, the district court did not err by refusing to tender
Wilson's proposed instructions to the jury.
V. Sentencing Issue
Wilson also alleges that the district court erred in
determining his sentence. We review a district court's findings of
fact for sentencing purposes for clear error. While we also give
due deference to the court's application of the Sentencing
Guidelines to the facts of the case, we review questions of law
involving interpretation of a Guideline provision de novo. United
States v. Purchess, 107 F.3d 1261, 1265-66 (7th Cir. 1997) (citing
United States v. Hammick, 36 F.3d 594, 597 (7th Cir. 1994)).
The district court determined that Wilson's offense level was
21 and his criminal history category was II, yielding an applicable
sentencing range of 41 to 51 months in prison. Wilson was sentenced
to 41 months' imprisonment, the bottom end of the Guideline range.
See Sentencing Tr. at 32 and 47-48. Wilson claims that the court
should have given him a two-level reduction in his offense level
pursuant to United States Sentencing Guideline ("U.S.S.G.") sec.
3E1.1(a). This Guideline directs the district court to reduce the
defendant's offense level "[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense . . . ." U.S.S.G. sec.
3E1.1(a). Application Note 2 provides the following guidance to
applying this rule:
This adjustment is not intended to apply to a defendant who
puts the government to its burden of proof at trial by denying
the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse. Conviction by
trial, however, does not automatically preclude a defendant
from consideration for such a reduction. In rare situations a
defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may occur,
for example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a challenge to
the applicability of a statute to his conduct). In each such
instance, however, a determination that a defendant has
accepted responsibility will be based primarily upon pre-trial
statements and conduct.
Wilson asserts that he fits within the boundaries of the
application note--while he went to trial, he was challenging the
constitutionality of the statute, not his factual guilt--and should
have received a downward departure. After reviewing the transcript
of the sentencing hearing, we find that the district court did not
abuse its discretion in denying Wilson's request.
The district court correctly interpreted sec. 3E1.1, noting
that a defendant can go to trial and still receive a downward
departure for acceptance of responsibility. See Sentencing Tr. at
31. The court then found that Wilson had not demonstrated that he
accepted responsibility for his acts, a conclusion amply supported
by the evidence. While he stipulated to many facts, Wilson did more
than merely question the constitutionality of sec. 922(g)(8) at
trial. For example, he attempted to challenge the testimony of
Judge Correll and William Thomas regarding what occurred and what
was discussed at the hearing on September 1, 1995. This was a
factual challenge, not purely a constitutional one. Additionally,
Wilson's own statements indicate that he did not accept
responsibility for his actions. Some examples: 1) after the jury
had been polled regarding its verdict, Wilson said "You all made a
terrible mistake. I forgive you." (Trial Tr., Day 3 at 20;
Sentencing Tr. at 24- 25); 2) at the sentencing hearing, Wilson
told the Court that "I know I've been railroaded." (Sentencing Tr.
at 18); and 3) later in the sentencing hearing, Wilson said that "I
have the transcripts of what [Angela Wilson] testified to and I'll
show later on the words were put into her mouth." (Sentencing Tr.
at 35). These statements, and others, support the district court's
finding that Wilson did not accept responsibility for his actions.
The court was within its discretion in finding that Wilson was not
entitled to a downward adjustment under U.S.S.G. sec. 3E1.1 and his
sentence must stand.
CONCLUSION
Because Congress acted within its enumerated powers when it
enacted 18 U.S.C. sec. 922(g)(8) and the statute does not run afoul
of the Fifth or Tenth Amendments, Wilson's constitutional challenge
must fail. The district court also properly denied Wilson's motion
for acquittal and determined that Defendant's Exhibit 6 was
inadmissible and that Wilson's proposed jury instructions should
not be tendered. Finally, no basis exists in this case for a
downward departure pursuant to U.S.S.G. sec.3E1.1. Accordingly,
Wilson's conviction and sentence are Affirmed.
FOOTNOTES
1. Under Illinois law, a plenary order of protection can be valid
for up to two years and can be issued only after a hearing, while
an emergency order is good for only several weeks and may be issued
ex parte.
2. Congress enacted a new version of sec. 922(q) in 1996,
addressing the flaws found by the Supreme Court.
3. Wilson also cited Printz v. United States, ___ U.S. ___, 117 S.
Ct. 2365 (1997), for the proposition that Congress can enact
legislation pursuant to its Commerce Clause powers but still
violate the Tenth Amendment. In Printz, the Court held that the
portion of the Brady Act requiring local law enforcement officials
to conduct background checks before an individual could purchase a
firearm was unconstitutional. The Court followed its decision in
New York, concluding that the federal government cannot command the
States' officers to administer or enforce federal regulatory
programs. 117 S. Ct. at 2384. As with New York, the present case is
distinguishable and Wilson's citation to Printz is of no avail.
Posner, Chief Judge, dissenting. It is wrong to convict a
person of a crime if he had no reason to believe that the act for
which he was convicted was a crime, or even that it was wrongful.
This is one of the bedrock principles of American law. It lies at
the heart of any civilized system of law. Yet like most legal
generalizations, it can be maintained only with careful
qualification. We generally do not require prosecutors to prove
that the defendant knew that he was violating the law, even in
cases in which the law is sufficiently remote from the moral code
of the society that such knowledge cannot be presumed or its
absence taken as evidence of culpable moral obtuseness. We say
instead that "ignorance of the law is no defense," and do not pause
to consider the consistency of this maxim with what we elsewhere
affirm to be a fundamental constituent of the rule of law and the
Constitution of the United States. In the unusual circumstances of
this case, the maxim of expedience should yield to the bedrock
principle; and there is enough room in the statutory language to
achieve this end without having to trundle out the heavy artillery
of constitutional law.
Congress created, and the Department of Justice sprang, a trap
on Carlton Wilson as a result of which he will serve more than
three years in federal prison for an act (actually an omission to
act) that he could not have suspected was a crime or even a civil
wrong. We can release him from the trap by interpreting the statute
under which he was convicted to require the government to prove
that the violator knew that he was committing a crime. This is the
standard device by which the courts avoid having to explore the
outer boundaries of the constitutional requirement of fair notice
of potential criminal liability. See, e.g., Ratzlaf v. United
States, 510 U.S. 135 (1994); Staples v. United States, 511 U.S.
600, 618-19 (1994).
Section 922(g)(8) of the federal criminal code (Title 18),
when read in conjunction with section 924(a)(2), makes it a crime
punishable by up to 10 years in prison for any person to possess a
gun if he is subject to a domestic-relations restraining order
against stalking or otherwise threatening a spouse or child. The
first of these sections, 18 U.S.C. sec. 922(g)(8), contains no
reference to the defendant's knowledge. But this section merely
makes the conduct (the possession of a gun by a person subject to
a stalking order) unlawful; it imposes no penalty for a violation.
The penalty provision is section 924(a)(2), and it requires that
the defendant have "knowingly" violated section 922(g).
The stalking provision was enacted in 1994 and the number of
prosecutions for violating it has been minuscule (perhaps fewer
than 10, though I have not been able to discover the exact number,
which is not a reported statistic) in relation to the probable
number of violations. I estimate that every year the law has been
in effect almost one hundred thousand restraining orders against
domestic violence have been issued (estimated from Patricia Tjaden
& Nancy Thoenes, Stalking in America: Findings From the National
Violence Against Women Survey 3, 6, 12 (U.S. Dept. of Justice,
April 1998); Adele Harrell & Barbara E. Smith, "Effects of
Restraining Orders on Domestic Violence Victims," in Do Arrests and
Restraining Orders Work? 219 (Eve S. Buzawa & Carl G. Buzawa eds.
1996)). Since 40 percent of U.S. households own guns (U.S. Dept. of
Justice, Bureau of Justice Statistics, Sourcebook of Criminal
Justice Statistics 1996 167 (1997)), there can be very little doubt
that a large percentage of those orders were issued against gun
owners.
How many of these gun owners, when they got notice of the
restraining order, dispossessed themselves of their guns? I doubt
that any did. The law is malum prohibitum, not malum in se; that
is, it is not the kind of law that a lay person would intuit
existed because the conduct it forbade was contrary to the moral
code of his society. Compare United States v. Robinson, 137 F.3d
652, 654 (1st Cir. 1998) ("child pornography offends the moral
sensibility of the community at large"), with United States v.
Grigsby, 111 F.3d 806, 816-21 (11th Cir. 1997) (importation of
ivory in violation of the African Elephant Conservation Act not
criminal without knowledge of the Act). Yet the Department of
Justice took no steps to publicize the existence of the law until
long after Wilson violated it, even to the extent of advising the
state judiciaries of it so that judges could warn defendants in
domestic-relations disputes. At argument the prosecutor told us
that the Office of the U.S. Attorney for the Southern District of
Illinois has made no effort to advise the local judiciary of the
law. Later he sent us two bulletins from Department of Justice
headquarters in Washington to the U.S. Attorneys' Offices
throughout the country directing the U.S. Attorneys to "educate
your state and local counterparts on these provisions. Their
assistance, particularly in working with local judges to fashion
domestic violence protective orders, is essential to the effective
implementation of the [provisions]" (emphasis added). But these
bulletins--a tacit admission that four years after the enactment of
the law, the word hasn't gotten out even to judges--were not
circulated until after Wilson's trial.
The federal criminal code contains thousands of separate
prohibitions, many ridiculously obscure, such as the one against
using the coat of arms of Switzerland in advertising, 18 U.S.C.
sec. 708, or using "Johnny Horizon" as a trade name without the
authorization of the Department of the Interior. 18 U.S.C. sec.
714. The prohibition in section 922(g)(8) is one of the most
obscure. A person owns a hunting rifle. He knows or should know
that if he is convicted of a felony he will have to get rid of the
gun; if he doesn't know, the judge or the probation service will
tell him. But should he be made subject to a restraining order
telling him to keep away from his ex-wife, whom he has not ever
threatened with his hunting rifle (the judge who issued the
restraining order could but did not issue an order forbidding
Wilson to possess a firearm as long as the order was in force, 725
ILCA 5/112A-14(b)(14.5)), it will not occur to him that he must
give up the gun unless the judge issuing the order tells him. The
judge didn't tell Wilson; so far as appears, the judge was unaware
of the law. Wilson's lawyer didn't tell him either--Wilson didn't
have a lawyer. No one told him. And there is no reason that he
should have guessed, for while he had beaten his wife and
threatened to kill her, there is no indication that guns played any
part in the beating or the threats. The fact that the restraining
order contained no reference to guns may have lulled him into
thinking that, as long as he complied with the order and stayed
away from his wife, he could carry on as before.
When a defendant is morally culpable for failing to know or
guess that he is violating some law (as would be the case of
someone who committed a burglary without thinking--so warped was
his moral sense--that burglary might be a crime), we rely on
conscience to provide all the notice that is required. Sometimes
the existence of the law is common knowledge, as in the case of
laws forbidding people to own hand grenades (see United States v.
Freed, 401 U.S. 601, 609 (1971)), forbidding convicted felons to
own any firearms, and requiring a license to carry a handgun. And
sometimes, though the law is obscure to the population at large and
nonintuitive, the defendant had a reasonable opportunity to learn
about it, as in the case of persons engaged in the shipment of
pharmaceuticals who run afoul of the criminal prohibitions in the
federal food and drug laws. See United States v. Dotterweich, 320
U.S. 277 (1943). We want people to familiarize themselves with the
laws bearing on their activities. But a reasonable opportunity
doesn't mean being able to go to the local law library and read
Title 18. It would be preposterous to suppose that someone from
Wilson's milieu is able to take advantage of such an opportunity.
If none of the conditions that make it reasonable to dispense with
proof of knowledge of the law is present, then to intone "ignorance
of the law is no defense" is to condone a violation of fundamental
principles for the sake of a modest economy in the administration
of criminal justice.
Actually a false economy. The purpose of criminal laws is to
bring about compliance with desired norms of behavior. In the
present case it is to reduce domestic violence by getting guns out
of the hands of people who are behaving menacingly toward (in the
usual case) an estranged or former spouse. H. Conf. Rep. No. 711,
103d Cong, 2d Sess. 391 (1994). This purpose is ill served by
keeping the law a secret, which has been the practical upshot of
the Department of Justice's failure--until too late, at least for
Wilson--either to enforce the law vigorously or to notify the
relevant state officials of the law's existence. In such
circumstances the law is not a deterrent. It is a trap.
All the Department of Justice had to do in order to preserve
the rule of law was to notify all state courts that have a
domestic-relations jurisdiction of the existence and terms of 18
U.S.C. sec. 922(g)(8) and to suggest that every domestic-relations
restraining order contain a printed warning that the defendant is
violating federal criminal law unless he immediately divests
himself of any firearms and ammunition that he owns.
Domestic-relations judges would be happy to include such a warning
because it would give added teeth to their orders. At slight cost-
- negative, really, when one considers how compliance with the law
would soar--the administration of the law would be brought into
conformity with the rule of law. The bulletins that the home office
of the Department of Justice has sent the U.S. Attorneys is a
belated but welcome recognition of my point but came too late to
help Wilson avoid becoming a federal felon. We thus have an
example of those "highly technical statutes that present . . . the
danger of ensnaring individuals engaged in apparently innocent
conduct" of which the Supreme Court spoke in Bryan v. United
States, 118 S. Ct. 1939, 1946-47 (1998). This case differs from
Bryan because the statute here is easy to understand; but it is
hard to discover, and that comes to the same thing, as we know from
Lambert v. California, 355 U.S. 225 (1957). The law challenged in
that case required a felon to register with the police. Lambert, a
felon, failed to do so. She "had no actual knowledge of the
requirement"; there was no showing of "the probability of such
knowledge"; "violation of [the law's] provisions [was]
unaccompanied by any activity whatever"; and "circumstances which
might move one to inquire as to the necessity of registration
[were] completely lacking." Id. at 227-29. The Court voided
Lambert's conviction. We should do the same for Wilson's
conviction.
Bryan's reference to "apparently innocent conduct" describes
the ownership of rifles and handguns, for personal use and not for
sale, by nonfelons in this nation's gun-friendly culture. "[T]here
is a long tradition of widespread lawful gun ownership by private
individuals in this country." Staples v. United States, supra, 511
U.S. at 610. Such ownership is as innocent as making huge cash
deposits, or having a large professional income but not filing
income tax returns--activities that the Supreme Court has held do
not subject a person to criminal liability if he is ignorant of the
law. Ratzlaf v. United States, supra; Cheek v. United States, 498
U.S. 192 (1991); see also Liparota v. United States, 471 U.S. 419
(1985); United States v. Curran, 20 F.3d 560, 569-71 (3d Cir.
1994).
It is true that strict liability, of which convicting a person
for conduct that he could not, realistically, have known was
criminal is an example, is not unknown to the criminal law. There
are strict-liability crimes, see, e.g., United States v. Park, 421
U.S. 658, 570-73 (1975); United States v. Balint, 258 U.S. 250,
252-53 (1922); United States v. Dotterweich, supra; Mueller v.
Sullivan, 141 F.3d 1232, 1235- 36 (7th Cir. 1998), which is to say
crimes that can be committed without any culpable state of mind
whatever. And many crimes have an element of strict liability, the
classic example being statutory rape in jurisdictions in which the
girl's apparent maturity is not a defense. See, e.g., State v.
Yanez, No. 97-110, 1998 WL 467356 (R.I. Aug. 4, 1998); Richard A.
Posner and Katharine B. Silbaugh, A Guide to America's Sex Laws,
ch. 3 (1996). But the existence and content of the criminal
prohibition in these cases are not hidden; the defendant is warned
to steer well clear of the core of the offense (as in the
statutory-rape case; and see United States v. Anton, 683 F.2d 1011,
1019-20 (7th Cir. 1982) (dissenting opinion)), or to take the
utmost care (the food and drug cases), or to familiarize himself
with the laws relating to his business (emphasized in Mueller).
None of these rationales applies to Wilson. His is the classic case
of the unwarned defendant. He is entitled to a new trial at which
the government would have to prove that he knew that continued
possession of guns after the restraining order was entered was a
crime. This conclusion is a linguistically permissible
interpretation of the statute because only the knowing violation of
section 922(g)(8) carries a criminal penalty; the interpretation
avoids a constitutional issue; and it is supported by Lambert,
Ratzlaf, Cheek, and other decisions.
I agree with my colleagues' discussion of the other issues
that the appeal presents.